September 12, 2007

If the UC Regents Are So Susceptible to Political Pressure...

by emptywheel

Then perhaps they could be persuaded to fire unitary laughingstock John Yoo?

Normally, I find it inappropriate to engage the David Horowitzes of the world on their McCarthyist ground. But if the UC system is comfortable rescinding an offer they've made to Edwin Chemerinsky, then it seems fair to ask them to fire the lawyer who has elicited--by far--the most controversy in recent years (and that's coming from someone who lives in Jeffrey Fieger's state)--John Yoo.

After all, Jack Goldsmith makes it pretty clear in his book. John Yoo's opinions--which served as the basis for the dismantling of significant parts of our Constitution--were, um, "flimsy." And that's coming from a fellow conservative.

Chemerinsky may be liberal, but he's not a "flimsy" liberal. You'd think a strong law school like Boalt Hall would be embarrassed about having Professor Flimsy Yoo floating around its halls; if they want to employ a lawyer who shredded the Constitution, they could at least look for one whose opinions were rigorous.

So perhaps the UC Regents, having set this precedent, might use the precedent to rid the UC system of its biggest embarrassment, Flimsy Yoo.

Comments

I don't see how rescinding an offer of deanship is a precedent for firing a professor.

I'm not even sure how to consider Yoo's "extracurricular" activities that he's done on behalf of the administration, and his academic activities (presuming he still has any). I do think it's reasonable to require a professor to step down before accepting a political position. (though not necessarily wise -- there is something to be said for having academic experts in policy positions. not Yoo, obviously, but in general.)

But more to the point, firing faculty (I'm assuming he's tenured) is a lot different than shuffling deanships. As I know you know...

Well, if the UC Regents Chairman, Richard C Blum,(DiFi's husband) has the wherewithall to push out UC President Dynes, http://sfgate.com/cgi-bin/article.cgi?file=/c/a/2007/08/15/MN1RRIFHV.DTL, why would he not consider Yoo too?

eyesonthestreet, like I said above, firing administrative positions (deans, presidents, etc) is a totally different proposition than firing an academic faculty member. And one of the main differences is that administrative positions are largely political, while faculty positions are (or should be) based on the individual's academic activities, political activity aside.

(That being said, there is a reason I blog anonymously -- while political action in an academic's private life should not count into career advancement, in practice it is not so straightforward. It is also the reason I bristle at the idea of even FURTHER politicizing academic appointments. Advocating Yoo's firing is a good way to go if your goal is to remove public intellectuals even further from political discourse. Which I think is what the bumper sticker on Bush's horse says.)

Perhaps my point is not clear. I just think that the Regents of UC could be made rather uncomfortable being shown the logical outcome of being so susceptible to political pressure.

No, I don't think Yoo could be fired for his shitty opinions as OLC lackey (particularly since the worst ones are still classified--we just have to take the words of Goldsmith how shitty they were). But the Regents might be made uncomfortable.

dio-si-do, while I agree with emptypockets, your suggestion sure would make me feel better. Berkeley and Boalt Hall are revered places for old hippy type lawyers; even ones like me that were undoubtedly closer to being yuppies than hippies.

EW, it is rare I disagree with you, but I do on this. I suspect Yoo may have gotten tenure in large part due to his political connections -- that sort of thing happens on a far broader scale than you might imagine. By which I mean, people have been known to be offered tenured positions because of who they know and/or collaborate with and may have brought in a prestigious grant or two. The departments that fall for this rock-star-type tenure tend to suffer from buyer's remorse, because a closer inspection of the person's actual abilities may show they should never have received tenure to begin with. This sort of thing happens and it happens in all fields. Personally I appreciate the irony that the same system protects the likes of Ward Chuchill as well as John Yoo. I don't personally have any regard for either one, but I am happy to suffer the extreme nut-jobs if it also protects the majority of sane hard working professors.

There are myriad problems with tenure, and for the record I don't have it myself. But I can easily imagine an academic world that would be much much worse without it.

Feel free to beat up on the UC Regents. They certainly deserve it. Just pick another approach in your attack...

For the record, I think tenure is a terrible thing--it's one of several reasons I left academics. It tends to replicate a system of authoritarianism and pettyness which makes scholarship more conservative.

That said, I understand that Yoo benefits from the same protection that Churchill does. But that doesn't mean the Regents shouldn't be made uncomfortable over the fact that their flagship law school is saddled with Yoo.

Yeah, well, Churchill didn't get that much support in the long run......
I am not particularly a big Churchill fan in the least, but he didn't get quite the academic support that some have; likely because he went out of his way to offend, beyond the point he was trying to make.

who was it (or were they) that talked to michael drake in such a way that he would rescind this appointment.

for me, the point is not to fire yoo, too, though i'd raise no objection to that firing,

the point is that some serious pressure was brought to bear on the irvine chancellor to get him to let go an outstanding academic for the position of dean of a new law school immediately after signing him.

this really does smack of further efforts by the right-wing to infiltrate not just the court system but the training grounds for lawyers.

EW, like I said there are all sorts of problems with tenure ranging from poorly qualified people you're stuck with forever (rock-star example above) to the classic "dead wood" (the unflattering term applied to older professors who are not only marking time until retirement, but making the lives of junior faculty difficult). And it goes on and on, but when I say I agree with the protection it provides, let me give you two examples...

The first is industry supported research where the industry in question reserves the right to prevent a researcher from publishing their results if they don't like the way things turn out.

The second is political hacks appointed to suppress federal research conducted by researchers in federal agencies that contradicts political preconceptions.

Federal grants are awarded with a certain amount of ambiguity. They go to an institution as well as to the principal investigator (P.I.). If for some reason the P.I. and institution part company, under some circumstances the federal agency might allow the award to follow the P.I., but under others it would remain with the original host institution. So now lets say we get rid of tenure and a professor who has landed a whopping grant runs afoul of their host instution. If that institution can fire them, they could then arrange for someone else to use that nice pot o' gold. They would still be obligated to conduct the research proposed, but it's not hard to imagine the research could be skewed for a political end. Given the level of corruption we are already dealing with, along with the manipulation of scientific data for political and commercial gain that already occurs, it seems to me that given the money at stake, removing tenure would open up academic research to some pretty serious fraud. Don't get me wrong, obviously fraud occurs already. I just think this would have the potential to make it worse.

Like I said though, I am torn. There are many things I don't like about tenure. But, I am not yet convinced that we would truly be better off without it. And again, although I work at a university, I am not in a tenure-track position and I hope to never to be in one, so this isn't a self-interested comment. I do believe tenure can protect academic freedom, but I agree it is a system that invites abuse.

Chemerinsky said in an interview today that UC Irvine Chancellor Michael V. Drake had flown to North Carolina on Tuesday and told him at a hotel near the airport that that he did not realize the extent to which there were "conservatives out to get me."

Chemerinsky, one of the nation's best known constitutional scholars and a liberal professor at Duke University in Durham, N.C., said he signed a contract last week after being offered the job Aug. 16.
[...]

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that the decision "had been difficult for him."

He said that "concerns" had emerged from the UC regents, which would have had to approve the appointment, Chemerinsky said. The professor said Drake told him that he thought there would have been a "bloody battle" among the regents over the appointment.

Both Drake and the Regent(s) who treatened the blood battle are the problem here. Drake should have stood by his decision and given Chemerinsky and his new law school a fighting chance. Yoo is just another bad decision.

Phred - I was pretty up on the Churchill thing for a while. I went to CU in Boulder for a year of graduate work, still have friends and a brother in law there, so I am around there a bit. The decision to oust Churchill was made before the supposed "fraudulent work" stuff really was at the forefront; that was the second thing they hung their hat on. I don't know how it ended up, but my initial take on the academic irregularity allegations were that they might have a bit of truth, but were mostly a little thin, i.e. merely an excuse for a predetermined conclusion. Quite possible they found more substance for the charges later on (went on for a while), I don't know. Churchill did not make himself a sympathetic character though....

emptywheel, calling for tenured profs to be fired for political reasons is just a line I wouldn't cross, at least until I was a bitter ex-prof glowing in my own extra-academic victories :) I think one can hang Yoo around the Regents' necks without calling for his expulsion. If they were bold enough to give tenure to a muddle-minded revisionist, what has made them so timorous now?

I don't think Yoo should be fired because of his OLC work or because if his "opinions" are anything like his "book," they are intellecutally dishonest at best. I think he should be fired because he is implicated in a conspiracy to violate the US Constitution and international law. The only question the UC Regents should consider is whether they want to fire him before or after the indictment.

Seriously, have you read any of the book? It's not good. I did some work with it this summer while rehashing the Pacificus/Helvidius essays, which is where Yoo bases some of his poorly constructed theories. An excerpt from that research:

. . . Later in that same chapter, Yoo directly discusses the neutrality proclamation, and states that

Washington's April 22 proclamation was not just a declaration that the United States would remain neutral in the European conflict. It was a presidential determination that American treaty obligations did not require entry into the war on the side of the French. Only after Washington reached that interpretation could he declare the United States to be neutral in the conflict. Washington did not act pursuant to any congressional authorization to interpret the treaties. [...] The Washington administration's approach to the European war demonstrated sensitivity to the distinction between treaty interpretation, which belonged to the executive, and domestic implementation, which was the province of Congress. [...] Washington and the leading figures of his administration proceeded on the assumption that it was the exclusive province of the executive branch to interpret treaties on behalf of the United States.

From John C. Yoo, The Powers of War and Peace, 201-02 (2005).

But then he makes a crazy right-wing turn to equate Washington's use of the interpretation power to keep the nascent US out of a potentially fatal war with Europe with Bush 43's decision to suspend habeas corpus for enemy combatants as a unilateral exercise of raw power. Yoo asserts that these decisions separated by some 220 years of history amount to EXACTLY the same thing. His weakest arguments here are the way he assumes silence implies consent, and that absence of evidence = evidence of absence:

On February 7, 2002, the White House announced that President Bush had interpreted [Common Article 2 of the Third Geneva Convention of 1949] to find that al Qaeda [sic] and Taliban members are not entitled to POW status. [...] As this chapter has made clear, President Bush had the constitutional authority to interpret and apply the convention without requiring the consent of the Senate or Congress.
The political system has accepted that President Bush enjoyed [sic- enjoyed is perhaps an unfortunate choice of wording] the power to interpret the Geneva Convention in this manner, despite the fact that he did not consult with or seek the consent of the Senate or Congress. This acceptance is suggested by the fact that, as far as I could tell, no members of Congress took to the House or Senate floor, or held committee hearings, to question the president's authority to make this decision on behalf of the United States. [...] Rather than a usurpation of authority, President Bush's power to interpret and apply the Geneva Conventions was rooted in the text, structure, and history of the Constitution.

From John C. Yoo, The Powers of War and Peace, 212 (2005).

Since “as far as he could tell,” nobody in the Republican-controlled Congress allowed this executive power to be questioned when its application was announced, everyone must have agreed that it was OK. I guess the "As far as I could tell" standard must be one of those ADVANCED topics in constitutional law.

If his OLC opinions are anything like his book (and by all rights, the book should be better-reasoned than the OLC work, what with more time for research and the guiding hand of a responsible editor), it's easy to understand why anyone who relied on them may have committed crimes. It's less easy to understand how anyone would accept this sort of juvenile excuse for reasoning as valid argument in the first place.

bmaz, thanks for the info, perhaps Churchill was a poor example. He struck me as the sort who craved attention and loved to stir the pot, so when the fraud accusations came I pretty much took them at face value 'cause he didn't strike me as the sort of fellow with the moral rectitude to dot all his i's and cross his t's academically. He was just the first crazy pseudo-lefty that came to mind to counter Yoo as the crazy pseudo-righty. They both strike me as being cut from the same cloth though, the kind of guys who make stuff up to support their world view. "Flimsy" indeed.

tekel, you raise an interesting point... If Yoo is disbarred, can he still retain his credentials to teach law? Does UC have an escape clause that even tenured law professors may be fired upon disbarment? How 'bout it? That would work for me...

phred - It may well have been firmed up later as to Churchill; I don't know. So, it may have turned out to be a good example for all I know; from a legal standpoint, I was pretty convinced he was on good ground for quite a while. I am really no fan of his in the least; but my mother was a bit of an academic and my default knee jerk position is, like emptypockets, to protect academic free speech. It got more and more difficult with Churchill (from a personality aspect, not factual), so I kind of stopped paying attention after a while.

I don't know if Yoo is more controversial than Fieger, but there is no way he's as loveable. Fieger is always, always entertaining. The primaries when he was vying to run against Engler were good times.

Some of you appear not to have noticed that my basis for calling for Yoo's firing (whether serious or not) was his flimsy opinions. I noted, in fact, that a very conservative lawyer found them flimsy. I suggested that they could find a different Constitution shredder with sound legal opinions. That suggests my point is not that Yoo's politics are the problem.

As to the "protection" tenure provides, having worked in and outside of the academy (including in UT, where my viewpoints were, to say the least, unpopular), I'm unconvinced what tenure gives us is really protection. And if it is, I'm not entirely sure it's the best way to achieve the protection one might desire.

phred

You don't have to be a lawyer to be a law professor. I know of several PhDs in PoliSci who moved into law from the PoliSci department.

Wait! I have personal experience with the UC system. Just in case anyone thinks that the location in California is any reason to relax your libertarian analysis, listen to this.

The UC system claims ultimate control over any intellectual property produced in part by the efforts of any employee (including graduate students).

In the specific instance, I sponsored (and directed) the research of a UC doctoral candidate. He performed chemical experiments and analysis. My support covered the experiments and at least part of his living expenses.

A peer reviewed paper was published and I (and my patent attorney) reduced the results to a patent application, ready to submit.

Then I called UC about a release. Here is the deal they offered me: pay of the patent application and processing. Pay the maintenance fees on the patent. The patent will belong to UC. I can then stand in line with everyone else and bid to license the patent!

In other words, it would cost me less to not patent the result, depriving the researcher of a patent cite. Most likely nobody would notice, so the result would be essentially secret.

So if there is any thought that lawyers in the UC system can distinguish between public good and some other standard, please disabuse yourself. Hell, they don't even profit one way or the other on idiot Yoo, why would they even consider the issue?

I comment occasionally under a different moniker, but I'd like to stay anonymous on this one...

In my field, at least, it would be impossible to attract good faculty without the very concept of tenure: alternative, much higher paying and even more "prestigious" jobs are readily available to anyone who is qualified to be faculty. Very honestly, the security of tenure is a tradeoff against those advantages. This is especially true in remote college towns with few other spousal employment opportunities, or few other opportunities whatsoever even for the faculty member who, without tenure, would likely decide they'd not like to "take their chances" in such a small and remote place.

I left my faculty position before the tenure decision, for other reasons. Of course tenure reviews can be abused. So can annual salary reviews in corporations, or the campaign finance system. But I have to say (was my field unique?) that almost every one of the tenured faculty I knew worked like demons well into their seventies (and in one famous case into his late nineties), and on more than one occasion I saw tenure "properly used" to take an unpopular but correct stand without fear.

Breaching the tenure wall would have a lot of unintended consequences. There would be departments (and some universities) that might evaporate almost overnight.

I'm all for making Yoo uncomfortable, but I wouldn't want to go after his tenure.

and bmaz, I'm flattered- that was a quick cut-and-paste job for the most part. Of course now I see things I'd change. I have an ongoing battle with run-on sentences, and that short passage makes it look like I'm losing X-| Oh well, good writing is re-writing.

D'you know anyone who needs a summer associate for next year? Preferably doing IP stuff somewhere on the west coast . . .

tekel - At one point in my life I could actually write without running everything and its brother into one sentence. I worked very hard at keeping that up even as a young lawyer; but it became too time consuming to do so and still get the legal thoughts I needed packaged right. That sounds terribly lame, even to me, as I say it here; but it is true. Now I am just a mess, but that is one of the few beautiful things about getting older and slightly crusty is that you just don't care anymore. Pay attention to it else you wind up a literary mess like me. No clue on the clerking front; especially IP area. If I think of anything, I will let you know. If that is to be a field of choice for you, I highly recommend you take any class, seminar or other opportunity to become expert in biotechnology aspects; especially genetics. It is the future, and mere IP won't be enough, it will take specialized knowledge; but it will be fascinating, challenging, cutting edge and big money.

Tomj -- The patent scam is a good one to point out, but independent of the tenure question. This is a huge deal these days as universities try to latch onto any funding stream they can with tighter budgets (at least in the case of publicly funded universities). The patent question is further complicated by the fact that a lot of research is funded through taxes. There are some really good questions about who should profit from the findings of such publicly funded research. It's a big question and I'm not taking sides, just saying that there are a lot of complicated issues around the patent question.

And speaking of publicly funded universities, I do think that tenure puts up a protective wall around faculty that the politicians who control the public funding mentioned above can't quite breach.

EW, I do agree that there are big problems with tenure and our university system. I like the way you think and am open to persuasion... What would you propose to replace tenure that does a better job of protecting intellectual freedom and diversity of opinion in a publicly funded university?

On the rare occasions I have perused some of Chemerinsky's writing it seemed refreshing, if perhaps exceedingly measured. It is a pity Irvine loses the opportunity to enjoy the amalgam of his experience and Irvine's perennial surge to transcend its own demographic. I understand, perhaps, the difficulty which tenure constitutes for individuals seeking some secure way to transfer knowledge to our youth; perhaps like a car that uses fuel and causes global warming, it is a way to commute across the spaces that separate, a solution transitory.

I hope Chemerinsky had a clause that allows some recovery for breach, if the negotiations had passed that threshold.

There is a constant tug in the UC system regents; the current governor reading national Republican Party scripts has an ex officio seat on that council. RNC constantly is working on undermining the corners of liberties for some mysterious reason; consider the CA initiative authored in the national cloakroom but presented in specious ways to prospective voters, concerning inverting the Electoral College by reassigning the way CA electors may participate, all couched in quasilibertarian oversimplifications. An enterprising local CA attorney has sent a FOIA request to delve into the mechanics of how RNC has engineered a few of such state initiatives, and on whose dime.
I commuted to a now shuttered secondary education institution in a town where Bush did one of his prescreened audience presentations in suburbia during the early failures of the Social Security finances Iraq trialBalloon in March 2005. In a way it was shocking to see the staid smalltown journal with a picture of beefy gendarmes muscling a highschoolWoman into cuffs at the curb* outside the staged Bush speech. Ebullient youth also appear when Yoo makes formal appearances, though Orange County Register has removed its same-day coverage from its website, a less heated blend of articles from OCR and the then LATimes describing one lecture Yoo tried to give in 2005 is available there.
_____
*NB: 4MBfilesize

bmaz: thanks for the advice. I've got the science background well covered :-D And I'm very interested in all of the ethical questions around granting traditional IP protections to cover living things or components of biological systems, but that's a long conversation for another thread...

I had exactly the same reaction to the news about Chemerinsky getting bumped that you did, emptywheel. Dump Yoo. Actually, I'm a Cal grad and have picketed outside Boalt about torture.

But then I realized that I don't like that line of thinking -- can't be trying to get professors fired. Though I don't think it would be wrong if the students in various ways indicated that they considered him to be bringing shame on the school.

Note: Christopher Edley from Boalt seems to be giving cover to the dumping of Chemerinsky according to the LA Times. That's weird too.

Hmmm, so I just saw an article in the WaPo this morning where one of the regents said the problem would not have been with them. This certainly rings true to me as I know at other institutions that once all the other parties have approved an offer the regents tend to go with what is recommended to them.

The WaPo also says the Chancellor freaked out when an Op-Ed appeared in the LA Times, fretting about Chemerinsky's availability to the media. Apparently a good Dean should be seen and not heard. Makes me wonder whether the Regents had anything to do with this at all or whether the Chancellor panicked and decided to blame the Regents rather than assume responsibility for his decision himself. Fine Chancellor you got there at Irvine.

As for Yoo, well, even if he can still teach after he's been disbarred, he wouldn't be able to from a jail cell. Here's hoping...

And speaking of disbarment, can any of our resident lawyers explain to me what it takes to start the process of disbarring a lawyer? We appear to have several candidates for such an action (in TX, WI, and CA at least), why has no one moved on it?

Oh, and here's the link to the WaPo article: http://www.washingtonpost.com/wp-dyn/content/article/2007/09/13/AR2007091302226.html?nav=rss_print/asection

The more I think about this, the more I think it is all about the Chancellor. The Chancellor's number one job is to schmooze big donors. In principle, the Chancellor should also be there to protect his deans and faculty from undue external pressure, but the number one job is fundraising. The prime targets for the Chancellor's efforts are the very rich alumni with big pots of gold who might be inclined to leave a big chunk of that pot to their alma mater. Of course, those alumni are the people who have most benefited from Bush's tax policies which have preserved such wealth for potential donation. So lets say the Chancellor is working a big donor who loves Bush, and then he sees the LA Times op-ed. The potential donor doesn't even have to say a word -- the Chancellor sees where his prime donors might take offense to criticism of Bush, the big pots of gold go to said donor's favorite pets, and the Chancellor sees himself looking for a new job.

I think in the end, this had a lot less to do with politics than with money. The way we fund our major institutions, whether elections or universities, makes them highly susceptible to the influence of big donors whether real or perceived. I also think Irvine needs a new Chancellor.